Opinion
No. CV 10-6009202
January 10, 2011
MEMORANDUM OF DECISION
This land use appeal arises from two municipal correction orders that one of the defendants, the East Windsor Inland Wetlands Watercourse Agency (the agency), issued to the plaintiff, Newberry Road Enterprises, LLC, to enforce the agency's inland wetlands regulations on property owned by the plaintiff in the town of East Windsor (the town) at 68 Newberry Road. Following a hearing before the agency, the correction orders were upheld. The plaintiff appeals the judgment of the agency pursuant to General Statutes § 22a-43. Amey Marrella, the commissioner of the Connecticut Department of Environmental Protection (the commissioner), is also a defendant in this action. A hearing on the appeal was held on October 5, 2010.
The plaintiff's summons identified the defendant as "East Windsor inland wetland and watercourse agency," while the plaintiff's appeal identifies the defendant as "East Windsor inland wetland watercourse agency. In its pleadings, the agency identifies itself as the former. To resolve any confusion, the court notes that the proper name of the defendant, a municipal administrative agency of the town of East Windsor, is "inland wetlands watercourse agency."
The commissioner was served a summons and a copy of the appeal, in accord with the requirements of § 22a-43(a), but is not named in the plaintiff's appeal.
"A brief overview of the statutory scheme that governs administrative appeals, including land use appeals, is necessary to our resolution of this issue. There is no absolute right of appeal to the courts from a decision of an administrative agency . . . Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed . . . In the absence of statutory authority, therefore, there is no right of appeal from [a municipal agency's] decision . . ." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004).
"General Statutes § 22a-43 governs the procedure for appeals from wetland and watercourse regulatory decisions. It provides, in general terms, that certain persons may appeal from inland wetland and watercourse actions. Those persons are the state commissioner of environmental protection, classically aggrieved persons, and owners or occupiers of land abutting or within ninety feet of the wetland or watercourse involved. The actions in which they may appeal are those `made pursuant to section 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality . . .' General Statutes § 22a-43(a). Those actions taken pursuant to §§ 22a-36 through 22a-45 are all inland wetland and watercourse actions of both the state commissioner and municipal inland wetlands agencies and districts." Klug v. Inland Wetlands Commission, 19 Conn.App. 713, 715, 563 A.2d 755, cert. denied, 213 Conn. 803, 567 A.2d 832 (1989).
For context, the court sets forth the following facts found in the record and discusses additional facts as necessary throughout this memorandum. The town issued two separate documents titled "Notice of Violation Correction Order" (collectively, the correction orders) to the plaintiff regarding its property at 68 Newberry Road. The correction orders are dated February 18, 2010, and were served on the plaintiff on February 22, 2010. The first correction order appearing in the record identifies itself as regarding "wetland violation-lower 120 feet of farm road," (the first correction order) while the second identifies itself as regarding "filling of wetland area and upland review area immediately north of farm pond" (the second correction order).
The first correction order directs "the removal and regrading of the lower portion of the farm road be completed by March 30, 2010." The second correction order states: "1. The fill placed in and immediately adjacent to the wetlands is to be removed. The area is to be regraded back to its original topographical grade. 2. The plantings as shown on the approved site plan . . . needs to be put in place. 3. This work is to be completed by April 1, 2010." Each of the correction orders contain the instruction that if "you contest that this work remains outstanding, please be prepared to present the evidence at the action hearing to be held on March 3, 2010 at 7:00 p.m."
At the March 3, 2010 hearing, each correction order was considered individually by a hearing board consisting of members of the agency's conservation commission. Robin M. Newton, town wetlands agent, zoning enforcement officer, and assistant town planner, presented evidence on behalf of the agency. The plaintiff was represented by counsel but did not present evidence. The first correction order was considered first and was approved as written. The second correction order was considered second and was upheld with amendments. Those amendments were that section 1 of the order was amended to reference a compilation survey prepared for the plaintiff dated January 18, 2008, and modified April 8, 2008, and section 3 of the order was amended to require the work to be completed by May 15, 2010. The plaintiff filed this appeal on March 22, 2010.
The plaintiff argues that it should prevail on its appeal and that the two correction orders should be stayed because: (1) By holding the hearing on the correction orders thirteen days after the date of the correction orders, rather than within ten days of that date as required by General Statutes § 22a-44(a), the orders lapsed and were void at the time of the hearing; (2) the agency abused its discretion and prejudiced the plaintiff by failing to grant the plaintiff a continuance in order to allow the plaintiff to respond to the evidence submitted by Newton and to present its own evidence; (3) the agency violated the plaintiff's constitutional rights by failing to grant the plaintiff a continuance in order to allow the plaintiff to present evidence; (4) the corrective orders are too vague and imprecise for the plaintiff to comply with them; and (5) the evidence does not support the agency's decision to deny the plaintiff's claims under General Statutes § 22a-40 (a) because the plaintiff is entitled to an exemption from the applicable statutes and agency regulations.
The defendants respond by arguing that: (1) The correction orders did not lapse because the requirement in § 22a-44(a) that a hearing be held within ten days of the issuance of an order is not mandatory; (2) the plaintiff was not prejudiced by a failure to continue the hearing because the plaintiff's counsel was present and did not request a continuance, the plaintiff had an opportunity to present evidence, and the plaintiff's expert was present at the hearing and had ample time to prepare; (3) the agency did not violate the plaintiff's constitutional rights by holding the hearing; (4) the requirements of the corrective orders are reasonable; and (5) the plaintiff never raised the issue of whether it was exempted, under § 22a-40(a), from responsibility for the violations, and the agency properly did not consider that issue.
I
Motion to Add to the Record
Before considering the substance of the plaintiff's appeal, the court must resolve a pending procedural motion before the court that was argued along with the merits of the appeal on October 5, 2010. On September 10, 2010, the plaintiff filed a request to add to the record by supplementing the record with 126 pages of documentary evidence previously submitted by the plaintiff. The agency objected to the plaintiff's request on September 13, 2010.
Section 22a-43 provides, in relevant part, that when appealing thereunder, "the record shall be transmitted to the court within the time specified in subsection (I) of section 8-8." General Statutes § 8-8(I) provides, in relevant part, that after transmission of the agency hearing's record, a court "may require or permit subsequent corrections or additions to the record." Although the procedures of General Statutes § 8-8(k) are not specifically referenced by § 22a-43, that section provides, in relevant part, that a court "shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal." Whether the additional evidence proposed is "necessary for the equitable disposition of the appeal" principle of § 8-8(k), is the issue to be resolved by the court.
"An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear evidence . . . The question whether additional testimony should be taken by the court calls for an exercise of the court's legal discretion." (Citation omitted.) Tarasovic v. Zoning Commission, 147 Conn. 65, 69-70, 157 A.2d 103 (1959); accord Clifford v. Planning Zoning Commission, 280 Conn. 434, 447-48, 908 A.2d 1049 (2006) (quoting Tarasovic).
In Tarasovic, the court, in considering whether it should hear testimony from an expert that did not testify before the administrative agency at the underlying hearing, stated that "[t]he obvious purpose of the offer of the testimony of the real estate expert was to add to the record something which the commission did not have before it. Under the statute, this additional testimony was not admissible unless it was essential for the equitable disposition of the appeal. The matter was within the sound discretion of the court." Tarasovic v. Zoning Commission, supra, 147 Conn. 70. Therefore, in order for this court to determine whether the court should grant the plaintiff's request to add to the record, it must consider whether the evidence the plaintiff seeks to add is essential to the equitable disposition of the appeal.
The court notes that almost all of the documentary evidence the plaintiff seeks to have added to the record is either already contained in the record transmitted to this court by the agency, pleadings contained in the case file, or language of statutes and regulations that can be judicially noticed by the court. The only two documents that do not fit any of those characterizations are a publication prepared by the Connecticut Department of Environmental Protection (the department), titled "wetland commissioner's handbook — a guide for municipal wetlands agency operations" (the handbook), and a two-page letter from the plaintiff's counsel to an employee of the town. Of those two documents, the plaintiff only refers to or relies on the handbook in any substantive way. Therefore, the court only considers whether the handbook is essential for the equitable disposition of this appeal.
As background, the court notes that the plaintiff's primary motivation for its request appears to be to supplement the record with a section of the handbook. In a previously submitted memorandum of law, the plaintiff had argued that this publication is legal authority supporting its argument that the correction orders have lapsed and are void. The agency responded to the plaintiff's argument by contending that the handbook was not presented to the agency at the hearing, is not a part of the record, and therefore, is not properly considered by the court unless the record is supplemented. The plaintiff's request to add to the record followed.
The plaintiff's argument as to the importance of the handbook concerns its contention that because the agency failed to hold a hearing within ten days of the date it issued the correction orders to the plaintiff, pursuant to § 22a-44(a), the orders lapsed or became void, on March 2, 2010, which was one day before the defendant held the hearing. One section of the handbook states that "[i]f a cease and desist order or cease and correct order is issued, a hearing must be commenced within ten days after the issuance of the order. If not held within ten days, the order will lapse and be void." The plaintiff argues that this statement contained within the handbook is a rule or regulation set forth by the agency, and therefore, has the force of a statute and constitutes law that supersedes a previous Appellate Court interpretation of the ten-day rule of § 22a-44(a). See Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 440, 558 A.2d 1021, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989).
The record contains all the factual evidence the court may rely on in evaluating the plaintiff's appeal. It is not an exhaustive collection of the law governing its resolution. For that reason alone, it appears that there is no basis to add the handbook to the record because the plaintiff's request for supplementing the record with the handbook relies on an argument that the handbook constitutes legal authority applicable to the court's resolution of this appeal, rather than a claim that it has any evidentiary value. Moreover, the issue of the handbook was not raised with the agency before, on, or after the hearing on March 3, 2010, and therefore, could not have any factual relationship to this appeal of the agency's decisions rendered in connection with that hearing.
Despite the fact that the plaintiff only offers the handbook as legal authority, the court is further persuaded, for a variety of reasons, that it should not be added to the record. Even if it did constitute legal authority, which has not been established, it is not a statute, regulation, or rule of either the agency or the department and cannot overrule an appellate court's interpretation of § 22a-44(a).
First, both the department and the agency have official regulations concerning inland wetlands and watercourses. The plaintiff, however, has not made any reference to any of regulations of either the agency or the department that reflect an intent to officially adopt the interpretation of § 22a-44(a) found in the handbook.
Second, to the extent that the handbook could be accepted as the department's official policy, although our Supreme Court has stated that courts "normally accord great deference to the construction of a statute by the agency charged with its enforcement and only reverse when the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion;" Crocetto v. Lynn Development Corp., 223 Conn. 376, 381, 612 A.2d 1212 (1992); nevertheless, it has also stated that "[a] policy manual provision that is inconsistent with a state statute or regulation regarding the same subject matter shall not govern interpretation of that statute or regulation." Teresa F. v. Ragaglia, 272 Conn. 734, 756, 865 A.2d 428 (2005) (although Department of Children and Families manual appeared to impose mandatory duty on commissioner to cause removal of child, it was clear from language of relevant statute as a whole, and as part of broader statutory scheme that statute itself was directory rather than mandatory); see also Harrison v. Commissioner, 204 Conn. 672, 680, 529 A.2d 188 (1987) ("[i]t is fundamental that an agency must act within its statutory mandate and that it has no authority to modify, abridge or otherwise change the statutory provisions under which it acquires authority").
In the present case, our Appellate Court's interpretation of § 22a-44(a) in Ruotolo v. Inland Wetlands Agency, supra, 18 Conn.App. 448-49, as more fully discussed in part II of this memorandum, represents an interpretation of the intended effect of that statute that is both binding on this court and inconsistent with the statement contained in the handbook. Therefore, the department's alleged statement of policy cannot govern the court's interpretation of § 22a-44(a). Even so, the plaintiff argues that because the handbook was published after Ruotolo, the department expressed an intent to supersede Ruotolo. The court rejects that argument. Without some expression by the legislature, the public body charged with enacting, amending and repealing our general statutes, of an intent to change the effect of § 22a-44(a) as interpreted by Ruotolo, that legal precedent remains controlling.
Therefore, because the handbook is not essential for the equitable resolution of this appeal, the plaintiff's request to add to the record is hereby denied.
II
Appeal
The court now considers the merits of the plaintiff's appeal. "It is well established that in challenging the decision of an administrative agency, such as an inland wetlands commission, the plaintiff carries the burden of proof to show that the challenged action is not supported by the record . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . .
"In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [This requires] something less than the weight of the evidence . . . The reviewing court must take into account [that there may be] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being . . . supported by substantial evidence.
"Finally, the commission is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Citations omitted; internal quotation marks omitted.) Unistar Properties, LLC v. Conservation Inland Wetlands Commission, 293 Conn. 93, 113-14, 977 A.2d 127 (2009). "The duty of a reviewing court in a wetlands appeal is to uphold the agency's action unless the action was `arbitrary, illegal or not reasonably supported by the evidence.'" Bain v. Inland Wetlands Commission, 78 Conn.App. 808, CT Page 3295 813, 829 A.2d 18 (2003).
A
The plaintiff's first argument in support of its appeal is that by holding the hearing on the correction orders thirteen days after the date of the correction orders, rather than within ten days of that date as required by § 22a-44(a), the orders lapsed and were void at the time of the hearing. The plaintiff's counsel also raised this argument with the agency during individual consideration of each of the correction orders at the hearing on March 3, 2010. Two legal issues arise from this argument within the context of this case: (1) Does the alleged untimeliness of the hearing have the effect of causing the orders to lapse and to become void as argued by the plaintiff, and (2) if so, because the correction orders were dated February 18, 2010, thirteen days before the March 3, 2010 hearing, but were served on the plaintiff on February 22, 2010, nine days before the hearing, which date qualifies as the date of "issuance of such order" as required by § 22a-44(a)?
As referenced in part I, our Appellate Court discussed the nature of the ten-day requirement of § 22a-44(a) in Ruotolo v. Inland Wetlands Agency, supra. In Ruotolo, the trial court entered a judgment sustaining the plaintiff's appeal after it concluded that a cease and desist order issued by the defendant, the town of Madison's inland wetlands agency, was void and that the agency thus lacked jurisdiction to conduct a hearing on it because the hearing occurred twelve days after the date the order was placed in the mail, which did not comply with the ten day provision of § 22a-44(a) and a similarly worded agency regulation. Ruotolo v. Inland Wetlands Agency, supra, 18 Conn.App. 446-47.
General Statutes § 22a-44(a) provides, in relevant part: "If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order, by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect."
Thereafter, the Appellate Court set aside the trial court's judgment and directed dismissal of the plaintiff's appeal on remand because it concluded that the ten-day provision of § 22a-44(a) is not mandatory. Id., 450. The court stated: "While it is undoubtedly true that under the statute it is mandatory that the defendant hold a hearing on the merits after issuing a cease and desist order, it does not necessarily follow that the time period is also mandatory . . . It is well settled that one of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision . . . There is nothing in the language of . . . § 22a-44(a) that suggests that, if the agency does not hold a hearing within ten days of the issuance of the order, all of its actions taken thereafter will be void . . . [T]he agency may issue a cease and desist order whenever it finds a violation of the Inland Wetlands and Watercourse Act or of the regulations. Since the act allows the agency the discretion to issue cease and desist orders whenever it finds such a violation, the agency could immediately reassert its jurisdiction by issuing a cease and desist order after ten days. Thus, it makes little sense to conclude that the legislature intended the ten-day period to be mandatory. Viewed in its proper context, the provision is designed not to set an inflexible time limit, but to secure a prompt and systematic dispatch of the proceedings relating to the cease and desist order . . . Hence, the provision relates to procedure and is merely directory. Consequently, the fact that the agency sent out the notice of the hearing two days early was not a defect fatal to its jurisdiction." (Citations omitted.) Id., 448-49.
The factual context and legal conclusions in Ruotolo clearly support a conclusion that, because the ten-day rule in § 22a-44(a) is directory rather than mandatory, the agency's alleged failure to hold a hearing on the correction orders within ten days of their issuance did not cause them to lapse or render them void under § 22a-44(a). Further, as previously discussed in part I, the court does not credit the plaintiff's argument that the handbook supersedes Ruotolo. Given the applicable law and the facts in the record, the court concludes that there is substantial evidence in the record to support the agency's conclusion that the correction orders had not lapsed, were not void, and that the hearing could proceed. Therefore, the plaintiff is not entitled to prevail on its appeal on that ground. Moreover, given this conclusion, it is not necessary for the court to determine which date constitutes the date of "issuance" of the correction orders under § 22a-44(a).
B
The plaintiff's second argument in support of its appeal is that the agency abused its discretion and prejudiced the plaintiff by failing to grant the plaintiff a continuance in order to allow the plaintiff to review the evidence presented by the agency and present its own evidence. The plaintiff also argues that the agency's denial of a continuance amounts to a denial of due process in violation of the fourteenth amendment to the United States Constitution and a denial of a right to present a defense in violation of the sixth amendment to the United States Constitution.
The department responds that the plaintiff never requested a continuance of the hearing, that the sixth amendment is inapplicable to the facts of the case, and that the record does not support the plaintiff's argument that its due process rights were violated. The agency argues that the plaintiff was not prejudiced by the lack of a continuance because it had been aware of allegations of wetlands violations on its property for over two years, hearings on those violations had previously been scheduled and rescheduled, and the plaintiff's expert, whom the plaintiff's counsel represented to the agency during the agency's consideration of the first correction order could not attend the hearing, was present for the consideration of the second correction order.
"The matter of continuance is traditionally within the discretion of the trial judge [or adjudicating tribunal], and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge [or tribunal] at the time the request is denied . . . [I]f the reasons given for the continuance do not support any interference with [a] specific constitutional right, the [reviewing] court's analysis will revolve around whether the trial court [or tribunal] abused its discretion . . . Whether to grant or to deny such motions clearly involves discretion, and a reviewing court should not disturb those decisions, unless there has been an abuse of that discretion, absent a showing that a specific constitutional right would be infringed." (Internal quotation marks omitted.) Campbell v. Campbell, 120 Conn.App. 760, 764, 993 A.2d 984 (2010); see O'Donnell v. Waterbury, 111 Conn.App. 1, 10, 958 A.2d 163, cert. denied, 289 Conn. 959, 961 A.2d 422 (2008) (applying similar standard to a review of a municipal administrative board's decision); see also Miniter v. Statewide Grievance Committee, Superior Court, judicial district of Hartford, Docket Nos. CV074029199, CV074030204, CV084037292 (June 3, 2009, Elgo, J.), aff'd, 120 Conn.App. 904, 991 A.2d 1119, cert. denied, 297 Conn. 912, 995 A.2d 639 (2010) (same).
"In assessing whether the denial of a continuance amounts to an abuse of discretion, courts have considered a number of factors, including the legitimacy of the reason for the delay, the likely length of the delay, prior continuances, the requesting party's responsibility for the timing of the request and any prejudice or substantial impairment that a denial of the continuance — would have on the requesting party's rights." O'Donnell v. Waterbury, supra, 111 Conn.App. 10.
Given the above standard of review, the court must first consider whether the failure to grant a continuance interfered with a specific constitutional right. Outside of the plaintiff's due process arguments, the only specific constitutional right the plaintiff argues was purportedly infringed was its right to present evidence in its defense as protected by the sixth amendment to the United States Constitution. As argued by the department, however, and recognized by our Supreme Court, but most succinctly stated by an appellate session of our Superior Court, the sixth amendment "applies specifically to criminal prosecutions and not civil actions and is therefore inapplicable in this case." Royal Sundry Co. v. Railroad Salvage of Connecticut, Inc., 39 Conn.Sup. 430, 434, 466 A.2d 340 (App.Sess. 1983); see State v. Harris, 277 Conn. 378, 392, 890 A.2d 559 (2006) ("the sixth amendment applies only to criminal prosecutions"); see also State v. Goffe, 41 Conn.App. 454, 461, 676 A.2d 1377 (1996) ("the protections provided by the [s]ixth [a]mendment are available only in `criminal prosecutions'"; [internal quotation marks omitted]). Thus, the agency's failure to grant a continuance did not interfere with a specific constitutional right, and the court reviews the record only to determine whether the plaintiff's due process rights were violated by failing to grant a continuance using an abuse of discretion standard.
The plaintiff argues that it requested a continuance during the hearing board's deliberation on the first correction order. The record shows that consideration of the first correction order commenced with a reading of the text of that correction order into the record by Newton. Thereafter, Attorney Timothy Brignole, legal counsel for the plaintiff at the hearing, addressed § 22a-44(a) and raised the argument, discussed above, that the date of the hearing violated the statute. Attorney Brignole stated: "[T]he last time we were here for this we indicated to you that we would be working with the army corps of engineers and Mr. Logan to try and resolve this issue, not only this one but also the next one . . . [W]e've been working with Mr. Logan; part of the issue with the army corp of engineers is to what extent these wetlands have been degradated over time through . . . predecessors' use of the property; so there [are] issues [on which] we are still dealing with Mr. Logan in order to put on a rebuttal to, or a response to this. We're going to need to, in fact, be able to call Mr. Logan. So, what I'm asking, or putting forward at this point in time is that the notice that has been given is outside the statute, and secondly, . . . I'm sure by the next meeting we should have the army corps of engineers input into both of these issues and have Mr. Logan's input available as well with regard to whether in fact there [are] any violations. So . . . I wanted to put on the record for you that the statute has not been complied [with] but also that the order of your notice is not in compliance with the statutes when you combine [the] two separate vehicles here; one is the notice of violation and the second being the correction order. Different vehicle. So that is my initial statement that I wanted to make to the commission at the outset so we didn't waste a lot of time."
Following Attorney Brignole's statement, Newton requested a five minute break to confer with counsel, and after reconvening after the break, stated that "after consulting with counsel, we're going to go ahead with our show cause hearing on the history of the farm road . . ." After Newton presented that history, Michael Ceppetelli, chairman of the agency, asked Attorney Brignole if he had any evidence "that he would like to present at this point." Attorney Brignole replied: "Yes, I would call Mr. Logan, but Mr. Logan is not here . . ." At this point, the record shows that Attorney Brignole's speech became too low to be recorded on tape, but then it evidently rose and he continued, "because your committee would not be going forward tonight. That's the only piece of evidence that I would at this point in time . . . introduce, but he's not available."
After Ceppeteili asked Attorney Brignole if he had Logan's evidence, Attorney Brignole responded: "No, I do not. I spoke to him tonight at 5:45 and he is not able to attend tonight's meeting." Ceppetelli then stated that "Ok, so . . . we've heard . . . about a library of evidence from [Newton] that she presented . . . [U]nfortunately, [the plaintiff] does not have any evidence that [it wishes] to present, so at this point if there are no other questions for [Newton] or anybody . . . we should close this deliberation and at that point make a decision." Thereafter, the deliberation as to the first correction order was closed and it was approved by the agency.
Based on the excerpts of the hearing provided above, it is clear that Attorney Brignole never explicitly requested a continuance of the hearing. Attorney Brignole appears to have begun to make a request of the board by his use of the words "what I'm asking," but quickly assumed a declaratory tone by stating "or putting forward," and never returned to asking the board for any type of relief.
Similarly, Attorney Brignole said that "we're going to need to, in fact, be able to call Mr. Logan," but had not yet told the board that Logan was unable to attend the hearing, as he would later state. Further, while Attorney Brignole did state that "I'm sure by the next meeting we should have the army corps of engineers input into both of these issues and have Mr. Logan's input available as well with regard to whether in fact there [are] any violations," he never requested that the board's consideration of the correction orders be continued or postponed until "the next meeting." For all these reasons, at best, a request for a continuance can only be implied from Attorney Brignole's statements.
As further discussed, infra, the record shows that Logan did attend the hearing, although he arrived late, after the deliberations on the first correction order had closed.
Nevertheless, there is no evidence in the record that the board ever understood Attorney Brignole to be requesting a continuance. The plaintiff argues that the agency, after consulting with its legal counsel, decided to proceed with the hearing despite the plaintiff's request. The plaintiff further argues that the five minute break taken by the board constituted a "secret meeting during a self-called recess" during which the board decided to "deny" the plaintiff's request.
The plaintiff's arguments are unpersuasive. First, the plaintiff's claim that the board discussed the plaintiff's purported request during the five minute recess is purely speculative. Second, the record shows that the break was requested by Newton, not the board, after the board had redirected the floor to her, and that Newton indicated that she alone intended to confer with legal counsel. Third, upon return from the break, it was Newton, not the board, that indicated that she intended to proceed with the hearing. Fourth, it is reasonable to conclude that it is just as likely that Newton requested the break in order to discuss the plaintiff's argument as to whether § 22a-44(a) had been violated, as it is that she discussed any implied request for a continuance by the plaintiff. This conclusion is supported by the fact that Newton requested the break immediately after Attorney Brignole summarized his initial statements by reiterating the plaintiff's position that § 22a-44(a) had been violated.
Moreover, Attorney Brignole had ample opportunity to formally request a continuance throughout the hearing. For example, when Attorney Brignole informed the board that the only evidence he intended to present was Logan's testimony, but that Logan was unable to attend, he could have requested a continuance, or, if Attorney Brignole believed that he had already made that request, could have renewed such request. Similarly, although the plaintiff has repeatedly noted that the correction orders were considered individually, Attorney Brignole never made any explicit, or even implicit, request for a continuance during the board's consideration of the second correction order, despite several opportunities to do so. During his initial statement on the second correction order, Attorney Brignole stated only that "we've contacted Mr. Logan, and as of today, Mr. Logan was not able to be prepared for this evening's . . . hearing as much as the short notice that we've received for this presentation."
Later during the presentation of evidence on the second correction order, the town's legal counsel pointed out that Attorney Brignole had previously represented that Logan was not able to attend the hearing, but that Logan was now in attendance. Attorney Brignole responded only that "as to the second application, Mr. Logan is here tonight, and is not able to testify on [the second correction order]. He wasn't here for the first one." Attorney Brignole never requested a continuance so that Logan could prepare himself to testify or for any other reason. Moreover, as to the first correction order, Attorney Brignole had represented that he was only prevented from presenting evidence because Logan could not attend. Although the deliberations on the first correction order had closed by the time Logan apparently arrived, Attorney Brignole never inquired whether the board would allow him to call Logan to testify as to the first correction order.
For all the foregoing reasons, the court concludes that because there is no evidence that the plaintiff ever explicitly requested a continuance, or that the agency ever considered granting a continuance, either at its own behest or as a result of any representations by the plaintiff, the agency could not have "denied" any such request, and did not abuse its discretion by failing to continue or postpone the hearing.
C
Another argument set forth by the plaintiff in support of the relief it seeks is that the correction orders are too vague and imprecise to allow for compliance. More specifically, the plaintiff argues in a memorandum of law in support of its position that the first correction order "fails to describe the exact area involved, the degree of removal and extent of regrading," and the second correction order "does not indicate what original topographical scale is being referenced." The agency responds that both orders were made pursuant to permits and plans originally submitted by the plaintiff and its principal owner or officer, Stephen Dearborn, itself, and are clear and reasonable.
1
The first correction order, addressed to Dearborn, contains a statement of facts applicable to the violation and order. Those facts include: "1. On November 11, 2007, you were notified by Katie Bednaz, wetland agent, that a farm road was being constructed without proper authorization and/or permit from the East Windsor inland wetland and watercourses agency . . . 3. The outcome from the granting of the . . . permit [number] 1406 (grant on April 2, 2008) was that the lower portion (120 feet) of the farm road (totaling 320 feet) was never permitted, remained a violation and was required to be removed and wetland mitigation to be performed. The upper portion of the farm road could remain provided the soils were suitable for use in a wetland." The first correction order concludes by ordering "the removal and regarding of the lower portion of the farm road must be completed by March 30, 2010."
The record supports the statement of facts contained in the first correction order that the agency first began attempting to correct wetlands violations by the plaintiff in November 2007. In a notice of violation dated November 15, 2007, Bednaz notified Dearborn that fill material, which was apparently the early foundation of the above-referenced farm road, was being deposited within wetlands at 68 Newberry Street, for which Dearborn had not obtained a permit from the agency. Later, in an application received by the agency on March 4, 2008, Dearborn submitted a permit application to the agency requesting permission to engage in projects including the construction of a farm road. Thereafter, permit number 1406 was issued to the plaintiff and Dearborn on April 2, 2008, allowing them to engage in the construction of the proposed projects.
The permit explicitly states that it was issued "for the purpose of" conducting "regulated activities associated with agricultural use; piping an intermittent water course within wetlands and a farm road to an irrigation pond." The permit also provides that "said work shall be performed in accordance with the map or plans entitled and dated . . . Site Plan: 68 Newberry Road . . . Plans Dated: January 18, 2008 . . . Revised thru 4/8/08." That plan, as contained in the record, includes a construction schedule that includes the "removal of fill material in the farm road," "existing road to be removed and restored to original grade," and makes reference to a place "where farm road has been removed," as well as the "area of the removed farm road."
A later notice of violation, dated October 29, 2008, from Laurie P. Whitten, then acting zoning and wetlands enforcement official for the town, notes that a one-year time period, as contained in permit number 1406, to remove "the south portion of the farm road is due to lapse by October 31, 2008. It appears that this portion of the farm road has been mostly removed." Another notice of violation, dated November 17, 2008, notes that the one-year time period for "removal of a portion of the farm road," had lapsed.
In response to the agency's argument that permit number 1406 required, as one of its conditions, the removal of the lower 120 feet of the farm road, and that that condition arose from the plan submitted by the plaintiff or Dearborn, the court notes that there is no evidence that such a requirement ever existed as part of permit number 1406. In general, the requirements of permit number 1406 are far from clear. While the stated purpose of the permit suggests that it was intended to allow the plaintiff to construct a farm road on its property, the map and plan referenced therein suggests that the intention was to completely remove a farm road that either had already been constructed, or was in the process of construction. Further contributing to the ambiguity of the permit is that it expressly states its "date of issuance" as "April 2, 2008," but relies on a map and plans revised through April 8, 2008, or six days after the issuance of the permit. For those reasons, the permit itself is unhelpful to the court in determining what the conditions of the permit were.
Moreover, while the document "history of farm road located at 68 Newberry Road," which was compiled by Newton for the March 3, 2010 hearing and subsequently read into the record at the hearing states that "the permit stated that the upper portion of the farm road could remain provided the materials were suitable for roadway construction in a wetland," it is evident that the permit does not contain such a requirement. Instead, it seems that the agency only came to have such an understanding of the effect of the permit sometime after its issuance.
Nevertheless, the fact remains that at the hearing, Newton stated that she and Whitten had performed a site visit to an adjacent property two days prior, and had taken measurements related to the first correction order. Newton stated at the hearing that eighty-five feet of the approved plan's required 120 feet of removal had been completed. Later, during its deliberations, the hearing board confirmed that it was approximately thirty-five feet and regrading that had to be completed in order to correct the violations contained in the first correction order. Based on that understanding, the board upheld the correction order.
At no time following Newton's statements, nor during the board's deliberations, did Attorney Brignole object to the content of the first correction order as vague or imprecise. Instead, no matter the actual requirements of permit number 1406 and the plan referenced therein, which, this court notes, appears to reflect an intention to remove the entire farm road, all of the parties involved in the hearing appeared to clearly understand that thirty-five feet of the farm road needed to be removed to correct the violation, and all the parties appeared to understand the type of physical work required to accomplish such a correction. Therefore, the court concludes that there is substantial evidence in the record to support the agency's decision to uphold the first correction order, and that the order was not too vague or imprecise so as to make it an error for the agency to do so.
2
As for the second correction order, in his initial statement as to his client's position, Attorney Brignole objected to the correction order as "insufficient" because it did not identify "the amount of material that they are ordering us to remove," and had not identified "exactly what it is you want us to . . . return the area to." Later, after the presentation and discussion of certain evidence, Attorney Brignole was asked by the board whether he had any additional evidence to present, to which he responded, "the only issue that I would raise is that on your correction orders . . . it's not clear with regard to what it is or how you want us to . . . correct the . . . area to its original topographical area." Newton responded that the map and plan referenced in permit number 1406 could be used, and after some additional discussion, the presentation of evidence was closed.
Based on the discussion between the board, Attorney Brignole and Newton, including Attorney Brignole's concern over any ambiguities in the correction order, the agency then upheld the second correction order with amendments. Specifically, the second correction order was amended to specify that the required regrading be done so as to return the area to its original topographical grade, as contained in the January 18, 2008 site plan for 68 Newberry Road, revised through April 8, 2008. Indeed, the principal concern with the second correction order that the plaintiff now raises, as to the topographical scale referred to, was raised by its counsel during the hearing, and the correction order was amended specifically to address that concern. For these reasons, the court concludes that there is substantial evidence in the record to support the agency's decision to uphold the second correction order.
D
In setting forth a final argument, the plaintiff contends in its memorandum of law that "the central issue before this court in the present case is whether substantial evidence exists in the entire record to support the decision of [the agency] to deny the plaintiff's claim of the farming exemption" contained in § 22a-40(a). The principal thrust of this argument by the plaintiff is that if it had been granted a continuance, it could have presented evidence to demonstrate that its conduct was permitted as-of-right under the farming exemption. For a number of reasons, the court is unpersuaded by this argument.
Section 22a-40(a) provides, in relevant part: "The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation, and activities conducted by, or under the authority of, the Department of Environmental Protection for the purposes of wetland or watercourse restoration or enhancement or mosquito control. The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale . . ."
First, as already discussed above, the court is not persuaded that the agency wrongfully failed to grant the plaintiff a continuance of the hearing. Second, the central issues in this case are not related to whether the plaintiff is entitled to a determination that the farming exemption contained in § 22a-40(a) is applicable to the plaintiff's property. While the plaintiff argues that the agency concluded that the exemption is not available to the plaintiff, and denied a claim of the exemption by the plaintiff, there is no indication that such a claim was ever raised by the plaintiff during the hearing or that the agency was ever occasioned to reach such a conclusion, let alone to have concluded that the exemption is unavailable to the plaintiff.
Under these circumstances, our appellate court has stated that whether the farming exemption contained in § 22a-40 is available to a plaintiff on appeal from a municipal administrative agency's decision is not for the trial court to determine. "Such determination must be made by the commission in the first instance. The trial court cannot . . . make a finding that the defendants' actions could be considered farming without the commission first having considered the issue." Canterbury v. Deojay, 114 Conn.App. 695, 708, 971 A.2d 70 (2009); see id., 709-10 ("[t]he defendants appear to have been under the mistaken assumption that because . . . § 22a-40 provide[s] that farming is a permitted activity in a wetlands area as of right, they needed no specific determination that their activities constituted farming. This determination, however, is a necessary step, and the court correctly concluded that `the defendant[s'] use of the property, whether or not it was agricultural, was not permitted . . .'"); see also Wilkinson v. Inland Wetlands Watercourses Commission, 24 Conn.App. 163, 165-68, 586 A.2d 631 (1991) (as explained in Canterbury, after the plaintiffs appealed from a ruling by a municipal inland wetlands and watercourses commission concluding that the plaintiffs had failed to prove that their proposed activities constituted farming because they had not properly applied to the commission for a permit as required, the trial court rendered judgment finding that the proposed activities constituted farming. The Appellate Court, however, reversed the trial court because the commission had not been given the first opportunity to determine whether the plaintiffs' proposed use was exempt from regulation, and, if not, whether to issue a permit).
Furthermore, the record shows that the agency had previously determined that the farm road was not a permitted use as-of-right under its inland wetland regulations and as comparable to the farming exemption of § 22a-40(a). A document contained in the record and titled "inland wetland jurisdictional ruling (permitted use as-of-right)," dated March 5, 2008, and issued to Dearborn, shows that the agency had previously considered whether either the plaintiff's inland wetland regulated activities involving (a) farm pond, or (b) farm road, were permitted uses as-of-right under its regulations. The ruling contains six types of jurisdiction, each with a space for an `X' next to it to indicate the type of jurisdiction the agency has over that type of regulated activity. Only the farm pond was marked next to the type of jurisdiction described as "permitted use-as-of-right, based on section 4 of the East Windsor inland wetland regulations," while the farm road was marked next to the type of jurisdiction described as "there ARE wetlands/watercourses on the property and an application for an inland wetland permit must be filed with the conservation commission." (Emphasis in original.)
As for the fill located in wetlands on the plaintiff's property that is the concern of second correction order, there is no evidence in the record that any jurisdictional determination has ever been made by the agency as to that activity. It is only the agency, and not the court, that may make such a determination. See Canterbury v. Deojay, supra, 114 Conn.App. 708. To the extent that the plaintiff might argue that its fill activity is covered by the agency's determination as to the farm pond, the record and appellate precedent do not support such a conclusion.
In Redd 11, LLC v. Conservation Commission, 117 Conn.App. 630, 642, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009), the plaintiff argued that a 2001 determination that certain farming activities did not require a permit pursuant to § 22a-40(a)(1) deprived the defendant municipal commission of jurisdiction over subsequent activities on the property in 2003. The Appellate Court, however, concluded that the 2001 declaratory ruling "did not serve to deprive the commission of jurisdiction for all matters with respect to [that] property . . . [The 2003 activities] were not part of the 2001 proceedings or the declaratory ruling issued by the commission. Simply put, the violations alleged in . . . 2003, had not been considered or decided by the commission in October 2001. Therefore, the plaintiff's argument that following the issuance of the 2001 declaratory ruling the commission lacked jurisdiction over the subsequent activities on the property is without merit." Id., 642-43.
There is no evidence in the record that the plaintiff ever sought a determination by the agency of its jurisdiction over the fill activity that is the focus of the second correction order, and Redd 11, LLC supports the conclusion that neither the farm road nor the farm pond determinations are applicable to that activity. For these reasons, the court makes no determination regarding the plaintiff's arguments under § 22a-40, other than to conclude that the plaintiff's argument has no effect on the outcome of this appeal.
CONCLUSION
Accordingly, for all the foregoing reasons, the plaintiff's appeal is hereby dismissed.